(1) A party is not liable for a failure to perform any of its obligations if he proves that
the failure was due to an impediment beyond his control and that he could not
reasonably be expected to have taken the impediment into account at the time of the
conclusion of the contract or to have avoided or overcome it or its consequences.
(2) If the party's failure is due to the failure by a third person whom he has engaged
to perform the whole or a part of the contract, that party is exempt from liability only
if:
(a) he is exempt under the preceding paragraph; and
(b) the person whom he has so engaged would be so exempt if the provisions of that
paragraph were applied to him.
(3) The exemption provided by this article has effect for the period during which the
impediment exists.
(4) The party who fails to perform must give notice to the other party of the
impediment and its effect on his ability to perform. If the notice is not received by the
other party within a reasonable time after the party who fails to perform knew or
ought to have known of the impediment, he is liable for damages resulting from such
non-receipt.
(5) Nothing in this article prevents either party from exercising any right other than to
claim damages under this Convention.

1. Article 79 specifies the circumstances in which a party "is not liable" for failing to perform
its obligations, as well as the remedial consequences if the exemption from liability applies.
Paragraph (1) relieves a party of liability for "a failure to perform any of his obligations" if
the following requirements are fulfilled: the party's non-performance was "due to an
impediment"; the impediment was "beyond his control"; the impediment is one that the party
"could not reasonably be expected to have taken into account at the time of the conclusion
of the contract"; the party could not reasonably have "avoided" the impediment; and the
party could not reasonably have "overcome" the impediment "or its consequences".

2. Article 79(2) applies where a party engages a third person "to perform the whole or a
part of the contract" and the third person fails to perform.

3. Article 79(3), which has not been the subject of significant attention in case law, limits the
duration of an exemption to the time during which an impediment continues to exist. Article
79(4) requires a party that wishes to claim an exemption for non-performance "to give
notice to the other party of the impediment and its effect on his ability to perform". The
second sentence of article 79(4) specifies that failure to give such notice "within a
reasonable time after the party who fails to perform knew or ought to have known of the
impediment" will make the party who failed to give proper notice "liable for damages
resulting from such non-receipt". Article 79(4) also appears not to have attracted significant
attention in case law, although one decision did note that the party claiming exemption in that
case had satisfied the notice requirement.[1]

4. Paragraph (5) makes it clear that article 79 has only a limited effect on the remedies
available to a party aggrieved by a failure of performance for which the non-performing
party enjoys an exemption. Specifically, article 79(5) declares that an exemption precludes
only the aggrieved party's right to claim damages, and not any other rights of either party
under the Convention.

5. Several decisions have suggested that exemption under article 79 requires satisfaction of
something in the nature of an "impossibility" standard.[2] One decision has compared the
standard for exemption under article 79 to those for excuse under national legal doctrines
of force majeure, economic impossibility, and excessive onerousness [3] -- although
another decision asserted that article 79 was of a different nature than the domestic Italian
hardship doctrine of eccessiva onerosità sopravvenuta.[4] It has also been stated that,
where the CISG governs a transaction, article 79 pre-empts and displaces similar national
doctrines such as Wegfall der Geschäftsgrundlage in German law [5] and eccesiva
onerositàsopravvenuta.[6] Another decision has emphasized that article 79 should be
interpreted in a fashion that does not undermine the Conventions basic approach of
imposing liability for a seller's delivery of non-conforming goods without regard to whether
the failure to perform resulted from the seller's fault.[7] And a court has linked a party's
right to claim exemption under article 79 to the absence of bad faith conduct by that
party.[8]

6. Many decisions have suggested that the application of article 79 focuses on an
assessment of the risks that a party claiming exemption assumed when it concluded the
contract.[9] The decisions suggest, in other words, that the essential issue is to determine
whether the party claiming an exemption assumed the risk of the event that caused the
party to fail to perform. In one case, a seller had failed to make a delivery because the
seller's supplier could not supply the goods without an immediate infusion of substantial
cash, and the seller did not have the funds because the buyer had justifiably (but
unexpectedly) refused to pay for earlier deliveries. The seller's claim of exemption under
article 79 was denied because the buyer, as per the contract, had pre-paid for the
missing delivery and the tribunal found that this arrangement clearly allocated to the seller
risks relating to the procurement of goods.[10] The risk analysis approach to exemption
under article 79 is also evident in cases raising issues concerning the relationship
between article 79 and risk of loss rules. Thus where the seller delivered caviar and risk
of loss had passed to the buyer, but international sanctions against the seller's State
prevented the buyer from taking immediate possession and control of the caviar so that it
had to be destroyed, an arbitral tribunal held that the buyer was not entitled to an
exemption when it failed to pay the price: the tribunal emphasized that the loss had to be
sustained by the party who bore the risk at the moment the force majeure
occurred.[11] And where a seller complied with its obligations under CISG article 31 by
timely delivering goods to the carrier (so that, presumably, risk of loss had passed to the
buyer), a court found that the seller was exempt under article 79 from liability for
damages caused when the carrier delayed delivering the goods.[12]

7. Article 79 has been invoked with some frequency in litigation, but with limited
success. In two cases, a seller successfully claimed exemption for a failure to
perform,[13] but in at least nine other cases a seller's claim of exemption was
denied.[14] Buyers have also twice been granted an exemption under article 79 [15] but
have been rebuffed in at least six other cases.[16]

8. It has been questioned whether a seller that has delivered non-conforming goods is
eligible to claim an exemption under article 79. On appeal of a decision expressly
asserting that such a seller could claim an exemption (although it denied the exemption
on the particular facts of the case),[17] a court recognized that the situation raised an
issue concerning the scope of article 79.[18] The court, however, reserved decision on
the issue because the particular appeal could be disposed of on other grounds. More
recently, that court again noted that it had not yet resolved this issue, although its
discussion suggests that article 79 might well apply when a seller delivers non-conforming goods.[19] Nevertheless, at least one case has in fact granted an article 79
exemption to a seller that delivered non-conforming goods.[20]

9. Decisions have granted exemptions for the following breaches: a seller's late delivery
of goods;[21] a seller's delivery of non-conforming goods,[22] a buyer's late payment
of the price;[23] and a buyer's failure to take delivery after paying the price.[24] Parties
have also claimed exemption for the following breaches, although the claim was denied
on the particular facts of the case: a buyer's failure to pay the price;[25] a buyer's failure
to open a letter of credit;[26] a seller's failure to deliver goods;[27] and a seller's
delivery of non-conforming goods.[28]

10. As a prerequisite to exemption, article 79(1) requires that a party's failure to
perform be due to an impediment that meets certain additional requirements (e.g., that it
was beyond the control of the party, that the party could not reasonably be expected to
have taken it into account at the time of the conclusion of the contract, etc.). One
decision has used language suggesting that an impediment must be an unmanageable risk
or a totally exceptional event, such as force majeure, economic impossibility or
excessive onerousness.[29] Another decision asserted that conditions leading to the
delivery of defective goods can constitute an impediment under article 79;[30] on appeal
to a higher court, however, the exemption was denied on other grounds and the lower
courts discussion of the impediment requirement was declared moot.[31] More recently,
a court appeared to suggest that the non-existence of means to prevent or detect a lack
of conformity in the goods may well constitute a sufficient impediment for exemption of
the seller under article 79.[32] yet another decision indicated that a prohibition on
exports by the seller's country constituted an "impediment" within the meaning of article
79 for a seller who failed to deliver the full quantity of goods, although the tribunal
denied the exemption because the impediment was foreseeable when the contract was
concluded.[33]

11. Other available decisions apparently have not focused on the question of what
constitutes an "impediment" within the meaning of article 79(1). Where a party was deemed
exempt under article 79, however, the tribunal presumably was satisfied that the impediment
requirement had been met. The impediments to performance in those cases were: refusal
by state officials to permit importation of the goods into the buyer's country (found to
exempt the buyer, who had paid for the goods, from liability for damages for failure to take
delivery);[34] the manufacture of defective goods by the seller's supplier (found to exempt
the seller from damages for delivery of non-conforming goods where there was no evidence
the seller acted in bad faith);[35] the failure of a carrier to meet a guarantee that the goods
would be delivered on time (found, as an alternative ground for denying the buyer's claim
to damages, to exempt the seller from damages for late delivery where the seller had
completed its performance by duly arranging for carriage and turning the goods over to the
carrier);[36] seller's delivery of non-conforming goods (found to exempt the buyer from
liability for interest for a delay in paying the price).[37]

12. In certain other cases, tribunals that refused to find an exemption use language
suggesting that there was not an impediment within the meaning of article 79(1), although
it is often not clear whether the result was actually based on failure of the impediment
requirement or on one of the additional elements going to the character of the required
impediment (e.g., that it be beyond the control of the party claiming an exemption).
Decisions dealing with the following situations fall into this category: a buyer who claimed
exemption for failing to pay the price because of inadequate reserves of any currency
that was freely convertible into the currency of payment, where this situation did not
appear in the exhaustive list of excusing circumstances catalogued in the written
contract's force majeure clause;[38] a seller who claimed exemption for failing to
deliver based on an emergency halt to production at the plant of the supplier who
manufactured the goods;[39] a buyer who claimed exemption for refusing to pay for
delivered goods because of negative market developments, problems with storing the
goods, revaluation of the currency of payment, and decreased trade in the buyer's
industry;[40] a seller who claimed exemption for failing to deliver because its supplier
had run into extreme financial difficulty, causing it to discontinue producing the goods
unless the seller provided it a considerable amount of financing.[41]

13. Most decisions that have denied a claimed exemption do so on the basis of
requirements other than the impediment requirement, and without making clear whether
the tribunal judged that the impediment requirement had been satisfied. The claimed
impediments in such cases include the following: theft of the buyer's payment from a
foreign bank to which it had been transferred;[42] import regulations on radioactivity in
food that the seller could not satisfy;[43] increased market prices for tomatoes caused
by adverse weather in the seller's country;[44] significantly decreased market prices for
the goods occurring after conclusion of the contract but before the buyer opened a letter
of credit;[45] an international embargo against the seller's country that prevented the
buyer from clearing the goods (caviar) through customs or making any other use of the
goods until after their expiration date had passed and they had to be destroyed;[46] a
remarkable and unforeseen rise in international market prices for the goods that upset
the equilibrium of the contract but did not render the seller's performance
impossible;[47] failure of the seller's supplier to deliver the goods to seller and a tripling
of the market price for the goods after the conclusion of the contract;[48] failure of the
seller's supplier to deliver the goods because the shipping bags supplied by the buyer
(made to specifications provided by the seller) did not comply with regulatory
requirements of the suppliers government;[49] failure of a third party to whom buyer had
paid the price (but who was not an authorized collection agent of the seller) to transmit
the payment to the seller;[50] an order by the buyer's government suspending payment
of foreign debts;[51] chemical contamination of the goods (paprika) from an unknown
source;[52] a substantial lowering of the price that the buyer's customer was willing to
pay for products in which the goods were incorporated as a component.[53]

14. Certain claimed impediments appear with some frequency in the available decisions.
One such impediment is failure to perform by a third-party supplier on whom the seller
relied to provide the goods.[54] In a number of cases seller's have invoked their
suppliers default as an impediment that, they argued, should exempt the seller from
liability for its own resulting failure to deliver the goods [55] or for its delivery of non-conforming goods.[56] Several decisions have suggested that the seller normally bears
the risk that its supplier will breach, and that the seller will not generally receive an
exemption when its failure to perform was caused by its suppliers default.[57] In a
detailed discussion of the issue, a court explicitly stated that under the CISG the seller
bears the acquisition risk -- the risk that its supplier will not timely deliver the goods or
will deliver non-conforming goods -- unless the parties agreed to a different allocation of
risk in their contract, and that a seller therefore cannot normally invoke its suppliers
default as a basis for an exemption under article 79.[58] The court, which linked its
analysis to the Conventions no-fault approach to liability for damages for breach of
contract, therefore held that the seller in the case before it could not claim an exemption
for delivering non-conforming goods furnished by a third-party supplier. It disapproved
of a lower courts reasoning which had suggested that the only reason the seller did not
qualify for an exemption was because a proper inspection of the goods would have
revealed the defect.[59] Nevertheless, another court has granted a seller an exemption
from damages for delivery of non-conforming goods on the basis that the defective
merchandise was manufactured by a third party, which the court found was an
exempting impediment as long as the seller had acted in good faith.[60]

Treatment of particular impediments: change in the cost of performance or the
value of the goods

15. Claims that a change in the financial aspects of a contract should exempt a breaching
party from liability for damages have also appeared repeatedly in the available decisions.
Thus seller's have argued that an increase in the cost of performing the contract should
excuse them from damages for failing to deliver the goods,[61] and buyer's have asserted
that a decrease in the value of the goods being sold should exempt them from damages for
refusing to take delivery of and pay for the goods.[62] These arguments have not been
successful, and several courts have expressly commented that a party is deemed to assume
the risk of market fluctuations and other cost factors affecting the financial consequences
of the contract.[63] Thus in denying a buyer's claim to an exemption after the market price
for the goods dropped significantly, one court asserted the such price fluctuations are
foreseeable aspects of international trade, and the losses they produce are part of the
"normal risk of commercial activities".[64] Another court denied a seller an exemption after
the market price for the goods tripled, commenting that "it was incumbent upon the seller
to bear the risk of increasing market prices ...".[65] Another decision indicated that article
79 did not provide for an exemption for hardship as defined in the domestic Italian doctrine
of eccesiva onerosità sopravvenuta, and thus under the CISG a seller could not have
claimed exemption from liability for non-delivery where the market price of the goods rose
"remarkably and unforeseeably" after the contract was concluded.[66] Other reasons
advanced for denying exemptions because of a change in financial circumstances are that
the consequences of the change could have been overcome,[67] and that the possibility of
the change should have been taken into account when the contract was concluded.[68]

16. In order for a non-performing party to qualify for an exemption, article 79(1)
requires that the non-performance be due to an impediment that was beyond his control.
It has been held that this requirement was not satisfied, and thus it was proper to deny
an exemption, where a buyer paid the price of the goods to a foreign bank from which
the funds were stolen, and as a consequence were never transmitted to the seller.[69]
On the other hand, some decisions have found an impediment beyond the control of a
party where governmental regulations or the actions of governmental officials prevented
a party's performance. Thus a buyer that had paid for the goods was held exempt from
liability for damages for failing to take delivery where the goods could not be imported
into the buyer's country because officials would not certify their safety.[70] Similarly, an
arbitral tribunal found that a prohibition on the export of coal implemented by the seller's
State constituted an impediment beyond the control of the seller, although it denied the
seller an exemption on other grounds.[71] Several decisions have focused on the
question whether a failure of performance by a third party who was to supply the goods
to the seller constituted an impediment beyond the seller's control.[72] One court found
that this requirement was satisfied where defective goods had been manufactured by the
seller's third-party supplier, provided the seller had not acted in bad faith.[73] Where
the seller's supplier could not continue production of the goods unless the seller
advanced it a considerable amount of cash, however, an arbitral tribunal found that the
impediment to the seller's performance was not beyond its control, stating that a seller
must guarantee its financial ability to perform even in the face of subsequent,
unforeseeable events, and that this principle also applied to the seller's relationship with
its suppliers.[74] And where the seller's supplier shipped directly to the buyer, on the
seller's behalf, a newly-developed type of vine wax that proved to be defective, the
situation was found not to involve an impediment beyond the seller's control: a lower
court held that the requirements for exemption were not satisfied because the seller
would have discovered the problem had it fulfilled it obligation to test the wax before it
was shipped to its buyer;[75] on appeal, a higher court affirmed the result but rejected
the lower courts reasoning, stating that the seller would not qualify for an exemption
regardless of whether it breached an obligation to examine the goods.[76]

Requirement that the party claiming exemption could not reasonably be
expected to have taken the impediment into account at the time of the
conclusion of the contract

17. To satisfy the requirements for exemption under article 79, a party's failure to
perform must be due to an impediment that the party "could not reasonably be expected
to have taken ... into account at the time of the conclusion of the contract." Failure to
satisfy this requirement was one reason cited by an arbitral tribunal for denying an
exemption to a seller that had failed to deliver the goods because of an emergency
production stoppage at the plant of a supplier that was manufacturing the goods for the
seller.[77] Several decisions have denied an exemption when the impediment was in
existence and should have been known to the party at the time the contract was
concluded. Thus where a seller claimed an exemption because it was unable to procure
milk powder that complied with import regulations of the buyer's state, the court held
that the seller was aware of such regulations when it entered into the contract and thus
took the risk of locating suitable goods.[78] Similarly, a seller's claim of exemption
based on regulations prohibiting the export of coal [79] and a buyer's claim of
exemption based on regulations suspending payment of foreign debts [80] were both
denied because, in each case, the regulations were in existence (and thus should have
been taken into account) at the time of the conclusion of the contract. Parties have been
charged with responsibility for taking into account the possibility of changes in the
market value of goods because such developments were foreseeable when the contract
was formed, and claims that such changes constitute impediments that should exempt the
adversely-affected party have been denied.[81]

Requirement that the party claiming exemption could not reasonably be
expected to avoid or overcome the impediment

18. In order for a non-performing party to satisfy the prerequisites for exemption under
article 79(1), the failure to perform must be due to an impediment that the party could
not reasonably be expected to have avoided. In addition, it must not reasonably have
been expected that the party would overcome the impediment or its consequences.
Failure to satisfy these requirements were cited by several tribunals in denying
exemptions to sellers whose non-performance was allegedly caused by the default of
their suppliers. Thus it has been held that a seller whose supplier shipped defective vine
wax (on the seller's behalf) directly to the buyer,[82] as well as a seller whose supplier
failed to produce the goods due to an emergency shut-down of its plant,[83] should
reasonably have been expected to have avoided or surmounted these impediments, and
thus to have ulfilled their contractual obligations.[84] Similarly, it has been held that a
seller of tomatoes was not exempt for its failure to deliver when heavy rainfalls damaged
the tomato crop in the seller's country, causing an increase in market prices: because the
entire tomato crop had not been destroyed, the court ruled, the seller's performance
was still possible, and the reduction of tomato supplies as well as their increased cost
were impediments that seller could overcome.[85] Where a seller claimed exemption
because the used equipment the contract called for had not been manufactured with the
components that the contract specified, the court denied exemption because the seller
regularly overhauled and refurbished used equipment and thus was capable of supplying
goods equipped with components not offered by the original manufacturer.[86]

Requirement that failure to perform be "due to" the impediment

19. In order for a non-performing party to qualify for an exemption under article 79(1),
the failure to perform must be "due to" an impediment meeting the requirements
discussed in the preceding paragraphs. This causation requirement has been invoked as
a reason to deny a party's claim to exemption, as where a buyer failed to prove that its
default (failure to open a documentary credit) was caused by its governments suspension
of payment of foreign debt.[87] The operation of the causation requirement may also be
illustrated by an appeal in litigation involving a seller's claim of exemption under article
79 from liability for damages for delivering defective vine wax. The seller argued it was
exempt because the wax was produced by a third party supplier that had shipped the
goods directly to the buyer. A lower court denied the seller's claim because it found that
the seller should have tested the wax, which was a new product, in which event it would
have discovered the problem;[88] hence, the court reasoned, the suppliers faulty
production was not an impediment beyond its control. On appeal to a higher court, the
seller argued that all vine wax produced by its supplier was defective that year, so that
even if it had sold a traditional type (which it presumably would not have had to
examine) the buyer would have suffered the same loss.[89] The court dismissed the
argument because it rejected the lower courts reasoning: according to the higher court,
the seller's responsibility for defective goods supplied by a third party did not depend on
its failure to fulfil an obligation to examine the goods; rather, the seller's liability arose
from the fact that, unless agreed otherwise, sellers bear the "risk of acquisition", and the
seller would have been liable for the non-conforming goods even if it was not obliged to
examine them before delivery. Thus even if the seller had sold defective vine wax that it
was not obliged to examine, the default would still not have been caused by an
impediment that met the requirements of article 79.

20. Several decisions assert that article 79(1) -- in particular the language indicating that
a party is exempt "if he proves that the failure [to perform] was due to an impediment
beyond his control ..." -- expressly allocates the burden of proving the requirements for
exemption to the party claiming the exemption,[90] and that this also establishes that the
burden of proof is generally a matter within the scope of the Convention.[91] In
addition, such decisions maintain that article 79(1) evidences a general principle of the
Convention allocating the burden of proof to the party who asserts a claim or who
invokes a rule, exception or objection, and that this general principle can be used,
pursuant to CISG article 7(2), to resolve burden of proof issues that are not expressly
dealt with in the

Convention.[92] The approach or language of several other decisions strongly imply that
the burden of proving the elements of an exemption falls to the party claiming the
exemption.[93]

21. Article 79(2) imposes special requirements if a party claims exemption because its
own failure to perform was "due to the failure by a third person whom he has engaged to
perform the whole or a part of the contract." Where it applies, article 79(2) demands
that the requirements for exemption under article 79(1) be satisfied with respect to both
the party claiming exemption and the third party before an exemption should be granted.
This is so even though the third party may not be involved in the dispute between the
seller and the buyer (and hence the third party is not claiming an exemption), and even
though the third party's obligations may not be governed by the Sales Convention. The
special requirements imposed by article 79(2) increase the obstacles confronting a party
claiming exemption, so that it is important to know when it applies. A key issue, in this
regard, is the meaning of the phrase "a third person whom he [i.e., the party claiming
exemption] has engaged to perform the whole or a part of the contract." Several cases
have addressed the question whether a supplier to whom the seller looks to procure or
produce the goods is covered by the phrase, so that a seller who claims exemption
because of a default by such a supplier would have to satisfy article 79(2).[94] In one
decision, a regional appeals court held that a manufacturer from whom the seller ordered
vine wax to be shipped directly to the buyer was not within the scope of article 79(2),
and the seller's exemption claim was governed exclusively by article 79(1).[95] On
appeal, a higher court avoided the issue, suggesting that the seller did not qualify for
exemption under either article 79(1) or 79(2).[96] An arbitral tribunal has suggested that
article 79(2) applies when the seller claims exemption because of a default by a "sub-contractor" or the seller's "own staff", but not when the third party is a "manufacturer or
sub-supplier."[97] On the other hand, an arbitral tribunal has assumed that a fertilizer
manufacturer with whom a seller contracted to supply the goods and to whom the buyer
was instructed to send specified types of bags for shipping the goods was covered by
article 79(2).[98] It has also been suggested that a carrier whom the seller engaged to
transport the goods is the kind of third party that falls within the scope of article
79(2).[99]

22. Article 79(5) of the Convention specifies that a successful claim to exemption shields
a party from liability for damages, but it does not preclude the other party from "exercising
any right other than to claim damages". Claims against a party for damages have been
denied in those cases in which the party qualified for an exemption under article 79.[100]
A seller's claim to interest on the unpaid part of the contract price has also been denied on
the basis that the buyer had an exemption for its failure to pay.[101] In one decision it
appears that both the buyer's claim to damages and its right to avoid the contract were
rejected because the seller's delivery of non-conforming goods "was due to an impediment
beyond its control", although the court permitted the buyer to reduce the price in order to
account for the lack of conformity.[102]

23. Article 79 is not excepted from the rule in article 6 empowering the parties to "derogate
from or vary the effect of" provisions of the Convention. Decisions have construed article
79 in tandem with force majeure clauses in the parties' contract. One decision found that
a seller was not exempt for failing to deliver the goods under either article 79 or under a
contractual force majeure clause, thus suggesting that the parties had not pre-empted
article 79 by agreeing to the contractual provision.[103] Another decision denied a buyer's
claim to exemption where the circumstances that the buyer argued constituted a force
majeure were not found in an exhaustive listing of force majeure situations included in the
parties' contract.[104]

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81. [BELGIUMRechtbank van Koophandel, Hasselt 2 May 1995 (Frozen raspberries case)] (a significant drop in
the world market price of frozen raspberries was foreseeable in international trade and
the resulting losses were included in the normal risk of commercial activities; thus buyer's
claim of exemption was denied); [BULGARIAArbitration before the Bulgarian Chamber of Commerce and Industry, 12 February 1998 (Steel ropes case)] (negative developments in the market
for the goods were to be considered part of the buyer's commercial risk and were to be
reasonably expected by the buyer upon conclusion of the contract); [ICCInternational Court of Arbitration, Award 6281 of 26 August 1989 (Steel bars case)] (when the contract was
concluded a 13.16 per cent rise in steel prices in approximately three months was
predictable because market prices were known to fluctuate and had begun to rise at the
time the contract was formed; although decided on the basis of domestic law, the court
indicated that the seller would also have been denied an exemption under article 79) (see
full text of the decision); [FRANCECour d'appel de Colmar 12 June 2001 (Polyurethane foam covers for air conditioners case)] (denying buyer
an exemption when buyer's customer significantly reduced the price it would pay for
products that incorporated the goods in question as a component; the court noted that in
a long term contract like the one between the buyer and the seller such a development
was foreseeable, and it concluded that it was thus up to the [buyer], a professional
experienced in international market practice, to lay down guarantees of performance of
obligations to the [seller] or to stipulate arrangements for revising those obligations. As it
failed to do so, it has to bear the risk associated with non-compliance.).